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National SEN & Disability Legal Practice

Reported Cases

Reported Cases:

KC v London Borough of Hammersmith & Fulham [2015] UKUT 177 (ACC). Confirmed that in SEND Tribunal proceedings the student can have a first and second choice of school and that Section 9 of the Education Act 1996 applied to both choices.

LW v Norfolk County Council (SEN) [2015] UKUT 0065 (AAC). Clarified the law in relation to the SEND Tribunals’ powers to review its own decisions. The Upper Tribunal set aside both the original decision and the decision on review.

The Queen on the Application of S v Suffolk County Council [2014] EWHC 2780 (Admin). Could the Local Authority simply provide care Post 18 and no education or training?

Parents of C v Trustees of Stanbridge Earls School [2013] EQLR304. This is the only FirstTier Tribunal Disability Discrimination hearing reported in full. The SEND Tribunal found direct discrimination, indirect discrimination and failure to make reasonable adjustments. The SEND Tribunal ordered £86,000 costs against Stanbridge Earls School, which is believed to be the largest amount ever awarded by the SEND Tribunal.

OR v London Borough of Ealing [2012] UKUT 2011 (AAC) (14 June 2012). The First-tier Tribunal, sitting in December, had made a decision about a child in Year 6 that only lasted until the end of Year 6, rather than going on to consider her secondary schooling, despite having evidence before it from both the child’s mother and the LA about secondary school provision. The Upper Tribunal found the First-tier Tribunal had made an error in law.

Chapple v Suffolk County Council [2011] EWCA Civ 870. The Court of Appeal gives guidance in this case to the proper approach the Upper Tribunal should adopt, emphasising the “evolving role of the new Upper Tribunal…which may provide opportunities for more flexible approaches to meeting the needs of particular cases in the interests of the parties”. This is important as there are often interlinked issues at play and it is often prohibitively expensive for parents to fund more than one set of legal proceedings at the same time. The Upper Tribunal should consider, for example, adjourning to allow Judicial Review proceedings to be instituted and then transferred from the Administrative Court to the Upper Tribunal. There is also considerable criticism of the approach adopted by Suffolk County Council in this case; criticism only tempered because the Council did, shortly before the hearing, concede the substantive issue.

Slough Borough Council v Special Educational Needs and Disability Tribunal and Others [2010] EWCA Civ 668. This case was heard by the Court of Appeal. The Local Authority appealed to the High Court and then subsequently the Court of Appeal because it argued that the Tribunal’s findings as to the respective costs of the parental choice of school were incorrect. The Local Authority lost at the Tribunal, lost at the High Court and lost in the Court of Appeal and ended up paying the bill. SEN Legal instructed Mr John Friel, Barrister, in this case.

Bedfordshire County Council v Haslam [2008] EWHC 1070 (Admin). Some children require educational input outside of normal school hours, in the form of what is known as a “waking day curriculum” (or in some cases an “extended day curriculum”). This case found that a child’s need for consistency of provision outside of school hours was not the same thing as the child requiring waking day provision.

C and S v Special Educational Needs and Disability Tribunal & Anor [2007] EWHC 1812 (Admin).This was a case about the obligation on the Tribunal to give reasons for rejecting or accepting expert evidence and for reaching particular conclusions.

JR & Anor v Hampshire County Council & Anor [2006] EWHC 588 (Admin). Appeal to the High Court against a decision of the Tribunal. [Prior to November 2008 and the creation of the unified Tribunals Service, appeals from SENDIST went to the High Court] The Tribunal had failed to consider whether the school they named in Part 4 of the child’s Statement could adequately make provision they had determined as necessary for the child in Part 3 of his Statement. The parental appeal was allowed and the case sent back to the Tribunal for them to decide this issue.

J v Staffordshire County Council and Special Educational Needs and Disability Tribunal 2005 EWHC 1664 (Admin) 2006 ELR 141. Evidence held to have been wrongly admitted to the SEND Tribunal. Despite having held that the evidence had been erroneously admitted, relief was refused by the Court, one of the most relevant factors was that the advocate on the day did not apply for an adjournment to consider the material.

JR & AR v Hampshire County Council and SEND Tribunal 2006 EWHC 588 (Admin) 2006 ELR 335. The Tribunal held that the child should be educated in good acoustic conditions, was not satisfied that the LEA’s placement could provide good acoustic conditions but nevertheless proceeded to name it.

Jones v Norfolk CC and another 2006 ELR 547 in which Crane J dealt with the Tribunal decision which failed to deal with the opinions and reasoning of the experts:

“What the Tribunal wholly failed to do was to refer to the opinions and reasoning of Mrs Sharkey, Mrs Page and Dr Male on the issue of whether a special school was required. It would be difficult to tell from the decision that those 3 experts had given any evidence at all on that issue”.

JF v London Borough of Croydon and Special Educational Needs and Disability Tribunal 31 August 2006 EWHC 2368 (Admin) CO/2705/2006. In setting aside the SEND Tribunal Decision, Mr Justice Sullivan para 11 commented:
“I find the first defendant’s attitude in this case very troubling indeed. He betrays a complete failure to understand the role of the Local Education Authority in Hearings before the Tribunal. Although the proceedings are in part adversarial because the Local Education Authority will be responding to the parent’s Appeal, the role of an Education Authority as a public body at such a Hearing is to assist the Tribunal in making all relevant information available. Its role is not to provide only so much information as to assist its own case. At the Hearing the Local Education Authority should be placing all of its cards on the table including those which might assist the parent’s case. It is not an adequate answer to a failure to disclose information to the Tribunal for a Local Education Authority to say that the parent could have unearthed the information for themselves if they had dug deep enough.”

And para 13
“Whether the first defendant’s failure to give this information to the Tribunal was deliberate or an oversight is of no consequence for the present purposes. What is of great concern is the first defendant’s initial response as set out above, once the true position emerged in the evidence obtained by the Appellants. One would have hoped any Education Authority confronted by such information would have been most concerned that the Tribunal might have been muddled even if wholly inadvertently by its evidence. I say the first defendant’s initial response because after taking instructions, Mr Dunlop very properly, if very belatedly, conceded the fact that the school was registered with the Department as a school for children with emotional and behavioural difficulties and they further fact that the school was not registered with the Society in the sense of being any way approved or endorsed by the society should have been disclosed to the Tribunal. However, despite those concessions, the first defendant continued to maintain that the decision should be quashed.”

HW & W v Bedfordshire County Council and another 2004 EWHC 560 (Admin) 2004 ELR 586. The Educational provision required out of school hours was not specified by the SEND Tribunal. In setting aside the SEND Tribunal’s Decision, the High Court held that the package of educational provision must be specified in The Send Tribunal decision was set aside when the out of hours “package of care” was not specified by the SEND Tribunal.